Bad Laws

Many years back, I took an quiz (in the pre-Internet days) that gauged political sophistication. One of the quiz’s questions was whether I agreed with the statement “The law is the law.” As I recall, it seemed a bit stark and jarring in comparison to most of the other questions, which had a fair bit of nuance. The scoring page included explanations, and elaborated on this “law is the law” question. Specifically, it posited that embracing this hard, binary stance was rather unsophisticated, a notion that made more and more sense the more I thought about it.

As a fan of argument, I’ve grown familiar with the bevy of logical fallacies that people (too) often advance in support of their opinions. One such is the “appeal to the law” fallacy, which is a specific instance of the broader “appeal to authority” fallacy. In both the narrow and broad contexts, this fallacy suggests that, if something is codified into statute, or if it’s advanced by an expert, an authority, a lawmaker, or the like, it is correct (factually or morally). When stated plainly, this is obviously not true. A law can be moral and “correct,” but that correctness is a reflection of the underlying principle, not the mere fact of the law’s existence. Laws against murder reflect the fact that murder is a violation of an individual’s fundamental rights, and it is that reflection that makes those laws proper and moral. Conversely, laws mandating that blacks sit in the back of the bus were wrong because the idea being enforced was wrong.

We encounter laws we disagree with all the time, and we often disagree about those disagreements. While most of us would take issue with the idea that an aspiring florist must apprentice for two years and pass a flower arranging test before being permitted to open his own shop (as was the law in a certain part of the country until recently), there is significant disagreement as to whether cannabis should be legal, and whether it should be legal for medical purposes only or without restriction. We debate the question, and no one who simply asserts “it’s illegal, therefore I’m correct in opposing it” will (or at least should) be taken seriously.

Even our system of jurisprudence recognizes that the mere fact of a law is not a validation of its correctness. A trial juror has no obligation to vote according to the law, no matter what a judge instructs. There is no penalty for voting to acquit despite ample evidence of the violation of a law (i.e. jury nullification). If you believe that pot possession is not immoral, you can vote to acquit someone who was without-a-doubt-in-the-world prosecuted for possession, and no one can do anything to reverse your vote or punish you for that vote.

This is what is so frustrating about debating illegal immigration nowadays. There are numerous points of debate in assessing immigration law and what to do about the current population of illegals in America, and it is those points and data that backs them that should constitute our dialogue. However, I have encountered more times than I can number a simple shut-down argument that “they broke the law” as a defense of deportations, building a wall, and tightening up policy. It is one of the most common arguments in opposition to DACA and amnesty for the “dreamers.” I have heard arguments other than appeal-to-law in this debate, and I even agree with some of them, but many people don’t take their opposition to illegals further than the mere fact of their illegality.

Perhaps our current immigration laws do reflect an underlying moral or philosophical justification. Perhaps they don’t. On this matter, we can have reasoned debate. However, simply screaming “they broke the law!,” as I once saw Bill O’Reilly do as a final word, is not an argument. There are bad laws, and we have throughout history supported those who broke such laws.

Are immigration laws good or bad? That’s a legitimate question, and anyone who supports enforcement of current immigration law should be ready, willing, and able to stand up and defend current law with arguments that go beyond simple “the law is the law” assertions.

Obviously, I take issue with both the hostility to illegals and with current immigration law. That’s an aside to the argument in this essay, but for those interested, I offer my takes on immigration, borders, and liberty.

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.